Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Student's Facebook Rant Against Teacher Is Free Speech, Judge Rules

A federal district judge has ruled that an Oregon 8th grader's rant to a friend on Facebook that his health teacher was "just a bitch" and "she needs to be shot" was not a true threat of violence but was instead protected free speech.

The student "did not intend to threaten or otherwise communicate with [the teacher] and did not seriously believe that [the teacher] should be shot," U.S. District Judge Michael W. Mosman of Portland, Ore., wrote in his ruling last month.

The case arose in 2012, when Braeden Burge was a 14-year-old who was frustrated with the C grade he had received from his health teacher, Veronica Bouck. Burge was at home chatting on Facebook with a fellow student who was in his circle of Facebook friends when he had the exchange about Bouck, according to court papers.

"She's the worst teacher ever," Burge wrote to his friend, who asked what she had done. "She's just a bitch haha," Burge responded. He soon added, "Ya haha she needs to be shot."

Burge's mother found the exchange soon after and made him delete the comments.

Six weeks later, a parent anonymously supplied a printout of the exchange to the principal of Colton Middle School. The principal gave Burge three-and-a-half days of in-school suspension.

Burge and his mother sued the school district, arguing that the boy's free-speech rights had been violated. The suit revealed that the teacher, Bouck, was nervous and upset by Burge's comments when she learned of them, and she did not want him back in her class.

After the student served his suspension, he returned to his classes, including Bouck's, without incident. (Court papers suggest, however, that the school assigned an aide to tail Burge on a class field trip that was supervised by Bouck.)

In his April 17 decision in Burge v. Colton School District, Mosman accepted the recommendations of a federal magistrate in favor of summary judgment for the student and his mother.

Mosman noted that in 2013, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held in Wynar v. Douglas County School District that students could be disciplined at school for off-campus speech that caused a disruption at school. (Oregon is part of the 9th Circuit.)

Applying the Wynar case, as well as the U.S. Supreme Court's landmark 1969 student speech decision in Tinker v. Des Moines Independent Community School District, Mosman held that a rational juror could not find Burge's off-campus Facebook comments to have caused "a material and substantial interference with appropriate school discipline."

"The comments did not cause a widespread whispering campaign at school or anywhere else," the judge said. "No students missed class and no [Colton Middle School] employees, including Ms. Bouck, missed work."

The judge found it significant that upon learning of Burge's Facebook comments, no school official found it necessary to contact the police or learn whether Burge had access to guns.

"Instead, [the principal] simply required [Burge] to sit in a school office near the teachers' mailboxes for three-and-a-half days," Judge Mosman said. "Without taking some sort of action that would indicate it took the comments seriously, the school cannot turn around and argue that [Burge's] comments presented a material and substantial interference with school discipline."

The judge ordered the Colton school district to remove Burge's suspension from his school records and to pay his family's attorney's fees and costs.

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